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What is the Electoral College?

Legal basis for Electoral College
Electoral College based in the U.S. Constitution

Most of us realize that the president of the United States is not elected directly by the voters.  Instead, voters select people on their candidate’s side to go to bat for them in what political people call “The Electoral College”.  There’s no actual college or campus, the term refers to the mechanics of converting popular vote into the actual selection of the President of the United States every four years.

The people who wrote the U.S. Constitution, sometimes called “our forefathers” debated how a president should be placed into office.   Some believed the President should be selected by Congress.  Others wanted the governors of each state to come together and pick the next president.   The Electoral College system adopted and in effect today represents a compromise.

How the Electoral College Works

The Electoral College, embedded in Article II of the U.S. Constitution represents a compromise between election or appointment of the President by Congress and election of the President directly by a popular vote of qualified citizens.  These were the warring factions as the U.S. Constitution was drafted.

When you vote for president, despite what the ballot says, you’re not actually giving your candidate a direct thumbs-up, you are in fact voting for that candidate’s “electors”.   A group of electors selected by political insiders usually at the state level stand ready to translate the popular vote into their vote in the Electoral College.

After the actual vote, each state prepares a “Certificate of Ascertainment” indicating who won, who that candidate’s electors are, and that they are ready to participate in the electoral vote on the first Monday after the Second Wednesday in December after the presidential election . It’s all in the constitution.

538 “electors” make up the Electoral College. The winner requires a majority of 270 electoral votes to become President.

Why the Number of Electoral College Members?

Each state’s total number of electors must equal the number of members in its Congressional delegation. That means every state has the same number of electors as it has congressional representatives and U.S. Senators.  This is embedded in the U.S. Constitution:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…”

Article II, Section 1, U.S. Constitution.

Reasoning behind the number of electors parallels the reasoning for divvying up the number of seats in the U.S Congress state-by-state. The House of Representatives is apportioned by population, adjusted every 10 years after the U.S. Census.  So the House was envisioned by those who wrote the Constitution as proportionately representing the U.S. population state by state.

Does the Electoral College Proportionately Represent the Population?

By contrast, each and every state has 2 senators. The drafters of the Constitution worried that smaller states … like New Hampshire, Delaware and Rhode Island … would see their vote drowned out by the vote of larger more heavily populated states.  They worried that smaller states would effectively have no voice in establishing national policy, overshadowed by larger states such as today’s populations in California, New York and Texas.

So, as with the formula for the U.S. Congress, the Electoral College represents a compromise between true proportional representation by population and giving each state an equal vote.

What about the District of Columbia? The 23rd Amendment of the Constitution gives  Washington D.C., formally known as the District of Columbia, 3 electors.  Therefore even though Washington D.C. has no voting member in the U.S. Senate, and only a member for formality in the House, D.C. gets state like status, even if only 3 votes, in the Electoral College.

Except for Maine and Nebraska, most states have a “winner takes all” system whereby the Presidential Candidate gaining the majority of the popular votes gets all of that state’s electoral votes. Officially, those electoral votes get tallied up in a joint session of Congress on the 6th of January following the Presidential election, where the count is overseen by members of Congress.  However, with computers and “moles” in polling places around the country the national news media count and report the vote right away.

Key dates in Electing the President

The presidential election is held every four years on the first Tuesday after the first Monday in November. By coincidence, the U.S. presidential election always coincides with “leap year”.  The President-Elect takes the oath of office and is sworn in as President of the United States on January 20th in the year following the Presidential election.

Electoral College Controversy

Critics despise the Electoral College.  Many call for getting rid of the system.  The purpose of this article is not to take sides, only to point out the legal underpinnings to electing a U.S. president.

Rarely in American history was the Electoral College questioned more than after the election of 2000. Democratic Vice President Al Gore is believed to have received approximately 540,000 more popular votes than Republican Candidate George W. Bush.  But even as recounts continued in the State of Florida, the U.S. Supreme Court effectively ordered a halt to the recounts one month after Election Day.  So George Bush squeaked by Al Gore with 271 electoral votes to Gore’s 266.

Opponents call for eliminating the Electoral College, replacing it with a simple popular vote.  They face the reality that the system is embedded in the U.S. Constitution itself. Any change requires a Constitutional amendment, a lengthy and somewhat cumbersome process. As Al Gore himself pointed out in his 2000 concession speech, that very close election was resolved “as it must be resolved” through the institutions of our democracy.

See:  Donald Trump, Lightening in a Bottle & the New Hampshire Primary.  Click Here.

Attorney Andrew D. Myers is a personal injury attorney with offices in North Andover, MA and Derry, NH.  His offices also handle consumer bankruptcy.

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Attorney Myers is a member of the American Trial Lawyers Association, Massachusetts Academy of Trial Lawyers, and New Hampshire Trial Lawyers Association. The Law Offices of Andrew D. Myers offer a broad range of legal services in personal injury cases in Massachusetts (MA) and New Hampshire (NH) areas.

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